Shanklin v. Rogers, 4568.

• Decision Date: 12 May 1948
• Docket Number: No. 4568.,4568.
• Citation: 213 S.W.2d 730
• Parties: SHANKLIN et ux. v. ROGERS et al.
• Court: Texas Court of Appeals

213 S.W.2d 730

SHANKLIN et ux. v. ROGERS et al.

No. 4568.

Court of Civil Appeals of Texas. El Paso.

May 12, 1948.

Appeal from District Court, Dallas County, 116th District; John A. Rawlins, Judge.

Action by Joan Rogers, by next friend, and another, against A. L. Shanklin and wife, to recover for injuries. From judgment for plaintiffs, defendants appeal.

Affirmed.

James H. Martin, of Dallas, for appellants.

White & Yarborough, of Dallas, for appellees.

McGILL, Justice.

The suit was brought by a minor by her father as next friend, and by the father individually, against the owners of a riding academy or place where saddle horses were rented for hire to the general public, for damages because of injuries suffered by the minor when a horse which she had rented from the Academy ran into the side of an automobile while she was riding it and threw her. Trial was to the court without a jury. The court rendered judgment in favor of the minor for $650.00 and in favor of her father for $100.00.

By their brief appellees object to the consideration of this appeal and move that it be dismissed because the appeal bond filed by appellants is payable to the County Judge of Dallas County, and not to appellee or the Clerk, as provided by Rule 354, Texas Rules of Civil Procedure. We overrule this objection and motion. The bond, though defective, is in fact a bond and upon timely request may have been amended. Grogan Mfg. Co. v. Lane, 140 Tex. 507, 169 S.W.2d 141.

The failure to include the proper obligees in the bond is not jurisdictional. Speckels v. Kneip, Tex.Civ.App., 170 S.W.2d 255, loc. cit. 258, Wr.Ref.

Such defects are waived by failure to present objections to the bond by motion within thirty days after the transcript is filed. Rule 404, T.R.C.P., Conlee v. Burton, Tex.Civ.App., 188 S.W.2d 713, loc. cit. 720.

The sole point presented is that the evidence is wholly insufficient to show negligence on the part of appellant and prayer is that the judgment be reversed and rendered.

The basis of liability of a liveryman or other person who lets a horse for hire seems to be a question of first impression in this state. The rule in other jurisdictions is thus stated in an annotation in 12 A. L.R. 778:

"* * * the rule is well settled by the authorities that, in the ordinary contract of this character, a liveryman, or other person who lets a horse for hire, is under an obligation, sometimes spoken of as an implied warranty, to furnish a reasonably safe animal for the purpose known to be intended, and for failure to use due care to discover dangerous propensities in such animals, or to disclose them to the hirer, he may be held liable for damages due to the exercise thereof."

This rule is supported by later decisions in a supplemental annotation appearing in 131 A.L.R. 847. Since appellee's cause of action was grounded on negligence of appellants, we need not concern ourselves as to whether there was an absolute liability because of any implied warranty. We shall confine our discussion to the sole point raised by appellants, i. e., that the evidence is insufficient to show such negligence. No findings of fact were requested or filed and of course every finding which finds support in the evidence and which is necessary to support the judgment will be presumed. The specific acts of negligence alleged are:

"(a) That d...